B v Police HC Wellington CRI 2009-485-13
[2009] NZHC 251
•4 March 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2009-485-13
B
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 3 March 2009
Counsel: R Gould for Appellant
J Webber for Respondent
Judgment: 4 March 2009
JUDGMENT OF SIMON FRANCE J (Appeal against refusal to grant bail)
[1] The appellant has been charged with injuring with intent to cause grievous bodily harm. At the time of alleged offending he was on bail in relation to a similar charge. The circumstances are on their face, therefore, are not particularly favourable but further consideration is required.
[2] Mr B is twenty-one years old. It appears he has some association with members of the Mongrel Mob. The first charges arise from an incident that occurred on the night of his twenty-first birthday. As I understand it, Mr B was assaulted by someone. He retaliated. At this point others joined him and took the retaliation
too far, and charges of injuring with intent to cause grievous bodily harm have
B V NEW ZEALAND POLICE HC WN CRI 2009-485-13 4 March 2009
resulted. I know no other details including the seriousness of the injuries caused nor the respective roles in the elevated part of the assault. At the hearing, Ms Gould advised that Mr B ’s position is that he had run off prior to the group assault.
[3] Mr B was given bail. However, two weeks later he became involved in another fracas. Mr B was a party and apparently intoxicated. Whilst at the party he was collected by two friends, who are associated with a gang, who told him to come for a drive. The purpose of that drive was to visit some people who had been involved earlier that night in an altercation with a gang member. This retaliation visit resulted in a serious assault on the men, involving the use of weapons and kicks to the head. The issue concerning Mr B will be his role in it. It would seem to be that the allegation against him is that he was a party, primarily by lending encouragement through his presence.
[4] Bail was declined on the basis of risk of re-offending. The Judge indicated that he would have looked favourably upon a renewed application for bail that involved electronic monitoring, but in the absence of such application he considered that he could not take matters further.
[5] In terms of appellate principles, I would be content to let matters rest with the Judge’s decision but for one fact. At the time of the decision it appears that the Judge had only the Police opposition to bail. In that document, Mr B is recorded as having kicked one of the victims several times in the head while he lay on the ground. As noted, the summary of facts currently available does not repeat that allegation. Indeed, it is silent as to Mr B other than that he was with the other offenders. I, therefore, consider it is appropriate to assess whether a different outcome can be justified.
[6] Mr B ’s situation is by no means typical. At the age of twenty-one he has until these events led a relatively trouble free past. He is in full time employment, lives at home with a parent and siblings, has successfully attended a military course, and enjoys good support from his employer. It is, therefore, puzzling to find him involved in two such incidents, only a fortnight apart, that have led to these charges.
It is apparent that alcohol is a problem. It is also obvious that he has been associating with persons who inevitably will lead him into trouble.
[7] Normally I consider that when one is bailed on a serious violence charge and within a fortnight is again involved in an incident of a similar nature, custodial remand will be inevitable. However, each case does need to be considered on its merits, and what appears to have been a very limited role by Mr B in the second incident allows, I consider, a different approach. Allowing bail would not be wholly inconsistent with the original decision, in that the Judge on that occasion plainly considered that heightened conditions might lead to a different outcome. With the advantage now of further information about the lesser role that Mr B played, and, therefore, arguably the lesser risk of re-offending that he presents, I consider it appropriate to give him one final opportunity.
[8] In reaching this decision I have not overlooked Mr Webber’s valid point that, even if the limited role be accepted, the Crown case is that the primary offenders got out of the car armed with weapons. At that point, even if earlier on Mr B did not know what was happening, he must have had some awareness of what was going to occur when he left the vehicle accompanied by armed men. It is a fair submission and one that caused me to consider carefully the outcome, but in the end on balance I am satisfied that at this stage the apparently limited role played by Mr B and arguably a unpremeditated initial involvement, justify giving him one final opportunity. At the bail hearing Mr B was supported by members of his family. I took the opportunity to explain the circumstances to them and request them to themselves bring home to Mr B the serious nature of his situation in terms of bail. If he proves unable to comply with these conditions then a custodial remand is almost inevitable.
[9] The conditions will be strict, but should Mr B at any point feel restricted by them, he can console himself with the thought that the certain alternative will certainly be more restrictive. Bail is granted on the following conditions:
a) to reside at 13B Morere Street, Titahi Bay;
b) to be curfewed to that address between the hours of 8.00 p.m. and
6.30 a.m.;
c) to present himself at the door for curfew checks by Police;
d) not to associate with his co-accused;
e) not to associate with members or associates of the Mongrel Mob;
f) not to contact by any means the victim’s in this matter;
g) not to consume alcohol or illicit drugs.
Simon France J
Solicitors:
R Gould, Barrister, Wellington
J Webber, Luke Cunningham & Clere, email: [email protected]
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